per: The Embassy of Serbia and Montenegro
to The Netherlands, The Hague

The Referral Bench of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 (the "Tribunal") is seized of the "Prosecutorís Motion to Withdraw the Motion and Request for Referral of the Indictment to Another Court under Rule 11bis" of
9 June 2005 ("Motion for Withdrawal").

Procedural history

On 9 February 2005 the Prosecutor filed a "Motion by the Prosecutor under Rule 11bis for Referral of the Indictment" ("Motion for Referral") requesting the President of the Tribunal to appoint a Trial Chamber to consider the "Request by the Prosecutor under Rule 11bis for Referral of the Indictment to another Court" ("Request for Referral"), which was filed the same day. On 10 February 2005 the President appointed this Referral Bench to determine whether the Indictment should be referred to another court.

On 1 March 2005 the Defence for Mile Mrksic, Miroslav Radic and Veselin Sljivancanin responded jointly to the Prosecutorís Request for Referral arguing that while the conditions for referral of the Indictment to another court as set out in Rule 11bis(C) are met, the conditions for referral pursuant to Rule 11bis(B) are only met with respect to the authorities of Serbia and Montenegro.

On 15 April 2005 the Referral Bench ordered the Parties and invited the Government of the Republic of Croatia and the Government of Serbia and Montenegro to make submissions on a number of questions relevant to its consideration of the Request for Referral. Submissions from the Parties, the Government of Croatia and the Government of Serbia and Montenegro were received on 28 April 2005.

A hearing on the Request for Referral was held on 12 May 2005 with the Parties present and the Government of Croatia and the Government of Serbia and Montenegro represented. The Bench reserved its decision on the Request for Referral.

However, on 9 June 2005 the Prosecutor filed the Motion for Withdrawal requesting the Referral Bench to grant leave to withdraw the Motion and the Request for Referral and order reinstatement of the case to the appropriate Trial Chamber of the Tribunal. On 13 June 2005 the Defence for the three Accused responded jointly opposing the Motion for Withdrawal and requesting that the Indictment be referred to the authorities of Serbia and Montenegro for trial. On 10 June 2005 the Government of Serbia and Montenegro filed a submission requesting that the Motion for Withdrawal be rejected and the Indictment in the present case be referred to its relevant authorities.

Submissions

The Prosecution submits that potential difficulties specific to this case, which were not foreseen at the time of the filing of the Request for Referral or at the time of the hearing, have recently come to its attention. It submits that as a consequence of these potential difficulties, and also in view of the significance of the prosecution of the three Accused as reflected in Security Council Resolution 1207(1998), the interests of justice require that the Request for Referral be withdrawn and the case reinstated before a Trial Chamber of the Tribunal.

The Defence submits that the Prosecutorís Motion for Withdrawal is vague and that the Prosecutor has been aware of the Security Council Resolution 1207(1998) at the time of the filing of its Request for Referral and at the hearing on the Request. It also submits that due to the Prosecutionís "Motion to suspend all non-essential proceedings" which was filed shortly after the Request for Referral, four months have elapsed without any further progress in the preparation of the case for trial. Further, it is submitted that pursuant to Rule 11bis(B) of the Rules of Procedure and Evidence ("Rules") the Referral Bench proprio motu should order the referral of this case to the authorities of Serbia and Montenegro as the conditions of Rule 11bis(B) and (C) in the present case, in its contention, are met.

The Government of Serbia and Montenegro submits that the Referral Bench shall "solely and exclusively" determine whether a case should be referred to another court and, while the Prosecutor may request a referral or a revocation of a referral under Rule 11bis, the final decision is that of the Referral Bench. It is submitted further that the Prosecutor has failed to identify the difficulties it seeks to rely on in support of its Motion for Withdrawal and that Security Council Resolution 1207(1998) referred to by the Prosecution concerns only the failure of then Federal Republic of Yugoslavia to arrest the Accused in this case and should not be interpreted as meaning more than that. It submits that the Motion for Withdrawal should be rejected and the case should be referred to the authorities of Serbia and Montenegro.

Discussion

The Referral Bench was well advanced in its consideration of the merits of the Request for Referral when, on 9 June 2005, the Prosecutor sought to withdraw it. The Referral Bench is, therefore, in a position to observe that the merits of the Prosecutionís Request for Referral are quite evenly balanced for and against referral in this case. In particular, the seniority of the Accused, especially that of Mile Mrksic, and the degree of seriousness of the conduct alleged against the Accused called for a difficult decision whether Rule 11bis would allow referral, and if so, whether the interests of justice would justify the Referral Bench exercising its discretion to refer this case. The exercise of discretion is made more difficult in this case by the issue whether to refer this case to Croatia or to Serbia and Montenegro, which requires a detailed evaluation of what are complex legal and other considerations.

In this latter context, the Referral Bench observed from the written and oral submissions the intensity of feeling that exists about this particular case. This is a material factor between the Governments of Croatia and of Serbia and Montenegro, and it is the foundation for much that is argued on behalf of the Accused and which led them to such a strong opposition to trial in Croatia, and such strong support for trial in Serbia and Montenegro in preference to trial before this Tribunal. The intensity of feeling which supported those views is no doubt matched by that of some potential witnesses and the families of the victims against trial in Serbia and Montenegro. The factual allegations in this case include the execution of at least 264 persons taken from Vukovar Hospital. By their nature these allegations provide a ready foundation for this extreme intensity of feeling, an intensity which brings into sharp focus the question whether, even today, a trial held in either country would be generally accepted as reflecting the fair administration of justice.

It is correct to observe, as the Defence does, that the Prosecution has not given detailed reasons for the request to withdraw the Request for Referral. It is apparent, however, from the Prosecution submissions, that discussions with officials of Croatia and of Serbia and Montenegro have led to the Prosecutor reconsidering the desirability of the referral of this particular case to either country. This development does not come as a surprise in light of the tenor of the submissions before the Referral Bench and the pronounced symbolic significance which the events founding this Vukovar hospital prosecution has gained, a significance reflected in Security Council Resolution 1207(1998).

The only formal request before the Referral Bench is the Prosecution Request for Referral and its associated Motion. The Prosecution now seeks to withdraw these. The Defence and Serbia and Montenegro are not in a position to file a formal request for referral to Serbia and Montenegro, but it has been clearly indicated that Serbia and Montenegro considers it would be appropriate for the trial to be held before the courts of that country. Both the Defence and Serbia and Montenegro urge the Referral Bench to act proprio motu to refer the case to that country for trial, and to do so despite the Prosecutionís present preference for the trial to continue before this Tribunal.

What has been said already in these reasons indicates the Referral Benchís appreciation of the difficulties presented by the Request for Referral in this particular case. The role of the Prosecutor before this Tribunal may enable the Prosecutor to have a particular insight into many factors relevant to the complex question whether a particular case can be appropriately tried by a State in the region of the former Yugoslavia, or whether it would be better for it to be tried before this Tribunal. The Rules reflect this role of the Prosecutor, as it is the Prosecutor that can initiate a request for the referral of a case. The Referral Bench considers it should be hesitant, therefore, to refuse a motion of the Prosecutor to withdraw a referral request. Further, while the Referral Bench can act proprio motu, it would normally only be appropriate for it to do so in an obvious case. For reasons already given, this is not an obvious case for referral and, in the Benchís view, it would be unjustified and unwise to act on its own initiative to order the referral of this particular case given the complexity of the issues which have been raised by the submissions and the intensity of the feelings generated among interested parties by the prospect of referral.

The circumstances of this particular case, so far as they are presently known to the Referral Bench, suggest that there is no sufficient justification for it, acting proprio motu, to refer this case for trial in a State in the region of the former Yugoslavia. On balance, the interests of justice appear to be better met by this trial being conducted before this Tribunal.

There is no need for any consequential order to reinstate this case before a Trial Chamber. The case remains before Trial Chamber II for pre-trial preparation.

Disposition

For the foregoing reasons and PURSUANT to Rules 54 and 11 bis of the Rules,